Exhibit No. (10)f
KIMBERLY-CLARK CORPORATION
DEFERRED COMPENSATION PLAN
EFFECTIVE AS OF OCTOBER 1, 1994
AMENDED AND RESTATED
AS OF APRIL 25, 2002
KIMBERLY-CLARK CORPORATION
DEFERRED COMPENSATION PLAN
KIMBERLY-CLARK CORPORATION HEREBY AMENDS AND RESTATES IN ITS ENTIRETY,
THE KIMBERLY-CLARK CORPORATION DEFERRED COMPENSATION PLAN, EFFECTIVE
APRIL 25, 2002.
I. PURPOSE
The purpose of this Kimberly-Clark Corporation Deferred Compensation
Plan is to permit a select group of management or highly compensated
employees of Kimberly-Clark Corporation and its subsidiaries to defer
income which would otherwise become payable to them.
II. DEFINITIONS AND CERTAIN PROVISIONS
2.1 "Agreement" means the Plan Agreement(s) executed between a
Participant and the Company, whereby a Participant agrees to
defer a portion of his or her Salary or Bonus, or both,
pursuant to the provisions of the Plan, and the Company agrees
to make benefit payments in accordance with the provisions of
the Plan. In the event the terms of the Agreement conflict
with the terms of the Plan, the terms of the Plan shall be
controlling.
2.2 "Beneficiary" means the person or persons who under this Plan
becomes entitled to receive a Participant's interest in the
event of the Participant's death.
2.3 "Board of Directors" means the Board of Directors of the
Company.
2.4 "Bonus" means any amount(s) paid during a calendar year to the
Participant under the Company's Management Achievement Award
Program or any successor program, the Company's Executive
Officer Achievement Award Program, or any successor or
additional program.
2.5 A "Change of Control" of the Company shall be deemed to have
taken place if: (i) a third person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of
1934, as amended, acquires shares of the Company having 20% or
more of the total number of votes that may be cast for the
election of Directors of the Company; or (ii) as the result of
any cash tender or exchange offer, merger or other business
combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction"),
the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board
of Directors of the Company or any successor to the Company.
2.6 "Code" means the Internal Revenue Code for 1986, as amended
and any lawful regulations or other pronouncements promulgated
thereunder.
2.7 "Committee" means the Retirement Trust Committee named under
the Kimberly-Clark Corporation Salaried Employers' Retirement
Plan.
2.8 "Company" means Kimberly-Clark Corporation, a Delaware
corporation, and its subsidiaries and any successor in
interest. For purposes of the Plan, a subsidiary
is a corporation, 50% or more of the voting shares of which
are owned directly or indirectly by the Company, which is
incorporated under the laws of one of the states of the United
States.
2.9 "Compensation Committee" means the Compensation Committee of
the Board of Directors.
2.10 "Deferral Year" means any calendar year 1995 through 2006. For
purposes of 1994, Deferral Year means the Effective Date of
the Plan through December 31, 1994. For purposes of 1994,
Deferral Year means the Effective Date of the Plan through
December 31, 1994.
2.11 "Deferred Benefit Account" means the cumulative total dollar
amount that a Participant elects to defer in the Agreement,
including gains and losses pursuant to Section 3 as maintained
on the books of the Company for a Participant under this Plan.
A Participant's Deferred Benefit Account shall not constitute
or be treated as a trust fund of any kind.
2.12 "Determination Date" means the date on which the amount of a
Participant's Deferred Benefit Account is determined as
provided in Article III hereof.
2.13 "Disability" shall have the same meaning as the phrase
"Totally and Permanently Disabled" under the Kimberly-Clark
Corporation Salaried Employees' Retirement Plan. The
determination of a Participant's having become Disabled shall
be made by the Retirement Committee of the Kimberly-Clark
Corporation Salaried Employees' Retirement Plan.
2.14 "Effective Date" means October 1, 1994.
2.15 "Investment Grade" means a bond rating of BBB minus, or its
equivalent, by one of the nationally recognized rating
agencies.
2.16 "Participant" means an employee of the Company, or its
subsidiaries or affiliated companies, who is eligible to
participate in the Plan pursuant to Article III, who has
executed an Agreement with the Company, and who has commenced
Salary or Bonus, or both Salary and Bonus, reductions pursuant
to such Agreement.
2.17 "Plan" means the Kimberly-Clark Corporation Deferred
Compensation Plan as amended from time to time.2.18
2.18 "Retirement Date" means the date of Termination of Service of
the Participant on or after he or she attains age 55 and has
5 Years of Service with the Company.
2.19 "Salary" means the Participant's base salary which would be
received during a calendar year if no election to defer were
made, including any 401(k) Contributions under the Company
Incentive Investment Plan or pre-tax contributions under the
Company's Flexible Benefit Plan." For purposes of this Plan,
Salary shall not include severance or other payments made in
connection with a Participant's Termination of Service.
2.20 "Termination of Service" means the Participant's cessation of
his or her service with the Company for any reason whatsoever,
whether voluntarily or involuntarily, including by reason of
retirement, death, or Disability.
2.21 "Valuation Date" means, for purposes of crediting earnings
under Section 3.6 and determining a Participant's Deferred
Benefit Account under Section 3.7, any business day on which
securities are traded on the New York Stock Exchange.
2.22 "Years of Service" shall have the same meaning as defined
under the Kimberly-Clark Corporation Salaried Employees'
Retirement Plan.
III. PARTICIPATION AND COMPENSATION REDUCTION
3.1 Participation. Participation in the Plan shall be limited to
the Chief Executive Officer, elected officers and all eligible
officers and/or employees of the Company, approved to
participate by the Chief Executive Officer in his sole
discretion, and who elect to participate in the Plan. A
Participant must file an Agreement with the Committee, at such
time and in such form as the Committee may require or permit,
prior to the first day of the deferral period in which a
Participant's participation commences in the Plan. The
election to participate shall be effective upon receipt by the
Committee of the Agreement that is properly completed and
executed in conformity with the Plan.
3.2 Minimum and Maximum Deferral and Length of Participation.
A Participant may elect to defer any amount of his or her
Salary or Bonus, or both, to the extent that any portion of
such amounts would not be deductible by the Company pursuant
to Section 162(m) of the Code. In addition, a Participant may
elect to defer from 10% to 100% of his or her Bonus paid
during a Deferral Year in 1% increments.
In the event a Participant elects to defer an amount of his or
her Salary and/or Bonus that would not allow for the full
payment of all FICA, federal, state and/or local income tax
liabilities, the Company may withhold all or a portion of any
applicable taxes from the Participant's Salary to the extent
required by law.
In no event may the amount of a Participant's deferral
election related to his or her Bonus paid during a
Deferral Year be less than $5,000. The deferral opportunity
shall extend through December 31, 2006. A Participant shall
make an annual election for the upcoming Deferral Year in the
year preceding the Deferral Year for which the election is
being made. Except as provided in Section 3.5, "Emergency
Benefit: Waiver of Deferral," any election so made shall be
irrevocable with respect to Salary and Bonus applicable to
that Deferral Year.
Notwithstanding anything in this Plan to the contrary,
a Participant may not elect to defer any amount under this
Plan unless the Participant files a statement with
the Committee that the Participant had individual income in
excess of $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of $300,000
in each of those years and has a reasonable expectation of
reaching the same income level in the current year.
3.3 Timing of Deferral Credits. The amount of Salary or Bonus, or
both that a Participant elects to defer in the Agreement shall
cause an equivalent reduction in
the Participant's Salary and Bonus, respectively. Deferrals
shall be credited throughout each Deferral Year as the
Participant is paid the non-deferred portion of Salary and
Bonus for such Deferral Year.
3.4 New Participants. An individual who is hired into a position
which satisfies the requirements of a Participant shall be
eligible to participate in the Plan thirty (30) days after
satisfying the criteria for participation. The eligible
employee shall be bound by all terms and conditions of the
Plan, provided, however, that his Agreement must be filed no
later than thirty (30) days following his eligibility to
participate.
Employees who satisfy the criteria of a Participant as a
result of a promotion or Salary increase will be eligible to
participate in the Plan beginning on January 1st of the
calendar year following eligibility.
3.5 Emergency Benefit: Waiver of Deferral. In the event that the
Committee, upon written petition of the Participant or his or
her Beneficiary, determines in its sole discretion, that the
Participant or his or her Beneficiary has suffered an
unforeseeable financial emergency, the Company shall pay to
the Participant or his or her Beneficiary as soon as possible
following such determination, an amount from the Participant's
Deferred Benefit Account not in excess of the amount necessary
to satisfy the emergency. For purposes of this Plan, an
"unforeseeable financial emergency" is an unanticipated
emergency that is caused by an event beyond the control of the
Participant or Beneficiary and that would result in severe
financial hardship to the individual if the emergency
distribution were not permitted. Cash needs arising from
foreseeable events, such as the purchase of a residence or
education expenses for children shall not be considered the
result of an unforeseeable financial emergency. For purposes
of this Plan, an "unforeseeable financial emergency" is
limited to an event described in Treasury Regulation section
1.401(k)-1(d)(2)(iv)(A)(1) or (4). For purposes of this Plan,
a distribution is in "the amount necessary to satisfy the
emergency" only if the requirements of Treasury Regulation
section 1.401(k)-1(d)(2)(iv)(B) are satisfied. The Committee
shall also grant a waiver of the Participant's agreement to
defer a stated amount of Salary and Bonus upon finding that
the Participant has suffered an unforeseeable financial
emergency. The waiver shall be for such period of time as the
Committee deems necessary under the circumstances to relieve
the hardship.
3.6 Crediting of Earnings - As of the close of business on
each Valuation Date the designated Deferred Benefit Account of
each Participant shall be capable of being valued and adjusted
to preserve for each Participant his or her proportionate
interest in the related funds as if such account held actual
assets and such assets were among such investment funds as the
Participant, retired Participant or Beneficiary elected
pursuant to Section 3.8. As of each Valuation Date the
Deferred Benefit Account of each Participant shall be capable
of being adjusted to reflect the effect of income, collected
and accrued, realized and unrealized profits and losses,
expenses which would have been incurred in connection with the
sale, investment and reinvestment of the investment funds
(such as brokerage, postage, express and insurance charges and
transfer taxes), and all other transactions with respect to
the related fund. The effect of such transactions shall be
determined by the Committee in accordance with generally
accepted valuation principles applied
on a consistent basis. Each Participant's Deferred Benefit
Account shall then be appropriately credited with his or her
deferred amounts as set forth in Section 3.7.
3.7 Determination of Account. The balance of each Participant's
Deferred Benefit Account as of each Valuation Date shall be
calculated, in a manner determined by the Committee in
accordance with generally accepted valuation principles
applied on a consistent basis, as follows: the beginning
balance of each Participant's Deferred Benefit Account; less
distributions payable pursuant to Section 4.11 as of the
Valuation Date coincident with the Determination Date set
forth in Section 4.11 or, if none, the Valuation Date
immediately following such Determination Date; plus investment
earnings, gains and losses determined pursuant to Section 3.6
credited to each Participant's Deferred Benefit Account; plus
Participant deferrals credited to each Participant's Deferred
Benefit Account pursuant to Section 3.3.
3.8 Investment Funds and Elections. - Participants, retired
Participants, and Beneficiaries may elect that their Deferred
Benefit Account be credited with earnings, gains and losses as
if such accounts held actual assets and such assets were among
such investment funds as the Company may designate. Any such
direction of investment shall be subject to such rules as the
Company and the Committee may prescribe, including, without
limitation, rules concerning the manner of providing
investment directions, the frequency of changing such
investment directions, and method of crediting earnings, gains
and losses for any portion of a Deferred Benefit Account which
is not covered by any valid investment directions.
Participants, retired Participants, and Beneficiaries shall
allocate their Deferred Benefit Account among the deemed
investment options by making an election online or filing an
election with the Committee at such time and in such form as
the Committee may require or permit. A Participant, retired
Participant or Beneficiary may elect to allocate his or her
Deferred Benefit Account in 1% increments (minimum of 5% per
investment option), among as many of the investment options
which are offered by the Company. The investment funds which
the Company may designate shall include but not be limited to
the following types of funds, which can be managed on an
individual basis or as part of a mutual fund, as the Company
shall determine:
(a) money market funds;
(b) common stock funds;
(c) bond funds;
(d) balanced funds;
(e) investment funds which are primarily invested in insurance
contracts; and
(f) investment funds which are provided for
under insurance contracts.
The Company shall have the sole discretion to determine the
number of investment funds to be designated hereunder and the
nature of the funds and may change or eliminate the investment
funds provided hereunder from time to time. The Committee
shall determine the rate of earnings, gains and losses to be
credited to Participant's Deferred Benefit Accounts under this
Plan with respect to any such investment fund for any period,
taking into account the return, net of any expenses which
would have been incurred in connection with the sale,
investment and reinvestment of the investment funds (such as
brokerage, postage, express
and insurance charges and transfer taxes), of such investment
funds for such period.
3.9 Reallocations. Prior to January 1, 2001, a Participant may
elect to reallocate all or any whole percentage portion of his
Deferred Benefit Account effective as of the last Valuation
Date of any calendar month.
Effective January 1, 2001, a Participant may elect as of any
day on which securities are traded on the New York Stock
Exchange to change the manner in which his or her Deferred
Benefit Account and his or her future deferrals are deemed
invested among the available investment fund options. Any
change of investment allocation received will be effective as
of the close of business on that business day if received by
3:00 p.m. Central Time (or, if earlier, the closing time of
the New York Stock Exchange or such other time and under such
other conditions as may be imposed by the recordkeeper or the
Committee under the Company Incentive Investment Plan). The
determination of a Participant's having timely elected a
change of investment allocation shall be made under the same
terms and conditions as are applicable to "Timely Notice" of
elections to reallocate under the terms of the Company
Incentive Investment Plan.
3.10 Vesting of Deferred Benefit Account. A Participant shall be
100 percent vested in his or her Deferred Benefit Account
equal to the amount of Salary and Bonus he or she deferred
into the Deferred Benefit Account and the earnings, gains or
losses credited thereon.
IV. BENEFITS
4.1 Inservice Distribution. At the time a Participant executes an
Agreement, he or she may elect to receive a return of his or
her deferrals. The amount of the return of deferral shall be
equal to the lesser of the amount deferred in a specific year
or the Participant's Deferred Benefit Account. Each such
return of deferral shall be made in a lump sum as soon as
administratively feasible on or after the last business day of
October, which shall be no less than five (5) Deferral Years
following the year in which the deferral was originally made,
provided that the Participant continues in the employ of the
Company, its subsidiary or affiliated company until such date.
Once the Participant elects to receive his or her return of
deferral, the election shall be irrevocable. A return of
deferral pursuant to this Section 4.1 shall only be paid prior
to a Participant's Termination of Service. Any return of
deferral paid shall be deemed a distribution, and shall be
deducted from the Participant's Deferred Benefit Account. A
separate return of deferrals election shall be made for each
Deferral Year.
4.2 Retirement Benefit. Subject to Section 4.6 below, upon a
Participant's Retirement Date, he or she shall be entitled to
receive the amount of his or her Deferred Benefit Account. The
form of benefit payment, and the commencement of such benefit,
shall be as provided in Section 4.6.
4.3 Termination Benefit. Upon the Termination of Service of a
Participant prior to his or her Retirement Date, for reasons
other than death or Disability, the Company shall pay to the
Participant, a benefit equal to his or her Deferred Benefit
Account.
Unless otherwise directed by the Committee, the termination
benefit shall be payable in a lump sum as set forth in Section
4.11 following the Participant's Termination of Service. Upon
a Termination of Service, the Participant shall immediately
cease to be eligible for any other benefit provided under this
Plan.
4.4 Death Benefit. Upon the death of a Participant or a retired
Participant, the Beneficiary of such Participant shall receive
the Participant's remaining Deferred Benefit Account. Payment
of a Participant's remaining Deferred Benefit Account shall be
in accordance with Section 4.6.
4.5 Disability. In the event of a Termination of Service due to
Disability prior to his or her Retirement Date, a disabled
Participant shall receive his or her remaining Deferred
Benefit Account. Payment of a Participant's remaining Deferred
Benefit Account shall be in accordance with Section 4.6.
4.6 Form of Benefit Payment.
(a) Upon the happening of an event described in Sections
4.1, 4.2, 4.3, 4.4, or 4.5, the Company shall pay to
the Participant the amount specified therein in a
lump sum.
(b) In the event that a Participant retires as described
in Section 4.2, the Participant may, with the consent
of the Committee, elect an installment form of
benefit payments. The written request must be made
prior to December 31 of the calendar year preceding
prior to December 31 of the calendar year
preceding the Participant's Retirement Date. The
Committee may, in its sole and absolute discretion,
grant the Participant's request. If, upon a
Participant's Retirement Date, the balance of a
Participant's Deferred Benefit Account is less than
$25,000, the Participant will be paid his or her
Deferred Benefit Account balance as of the
Participant's Retirement Date, in a final lump sum
payment.
(c) In the event of the death of the Participant, as
described in Section 4.4, the Participant's
Beneficiary may, with the consent of the Committee,
elect an installment benefit payment. This written
request must be made no later than thirty (30) days
after the Participant's date of death. The Committee
may, in its sole discretion, grant such Beneficiary's
request.
(d) In the event that a Participant terminates service
due to a Disability as described in Section 4.5, the
Participant may, with the consent of the Committee,
elect an installment form of benefit payment. The
written request must be made no later than thirty
(30) days after the date the Participant is
determined to be disabled by the Retirement Committee
of the Kimberly-Clark Salaried Employees' Retirement
Plan. The Committee may, in its sole discretion,
grant the Participant's request.
(e) In the event that installment payments are to
made pursuant to Subsections 4.6(b), (c) or
(d), such payments shall be in quarterly installments
commencing as soon as administratively feasible after
the Committee grants the request for an installment
form of benefit payment. Such quarterly installments
shall be payable in approximately equal amounts over
a period, no less than two (2) calendar years and no
more than twenty (20) calendar years. In addition,
if, at the time a Participant is scheduled to receive
an installment payment, the balance of his or her
Deferred Benefit Account is less than $5,000, the
Participant will be paid his or her remaining
Deferred Benefit Account balance in a final lump sum
payment.
Initially, the amount of any installments under the
installment form of payment described in this
Subsection 4.6(e) shall be equal to the balance of
the Participant's Deferred Benefit Account to be
distributed divided by the number of installments to
be paid. The amount of the installment payments shall
be recomputed annually and the installment payments
shall be increased or decreased to reflect any
changes in the Participant's Deferred Benefit Account
due to fluctuations in earnings, gains and losses on
the remaining balance and the number of remaining
installments. Quarterly installments payments will be
made on the last business day of January, April, July
and October.
4.7 Limitations on the Annual Amount Paid to a Participant.
Notwithstanding any other provisions of this Plan to the
contrary, in the event that a portion of the payments due a
Participant pursuant to Sections 3.5, 4.1, 4.2, 4.3, 4.4, 4.5,
or 4.6 would not be deductible by the Company pursuant to
Section 162(m) of the Code, the Company, at its sole
discretion, may postpone payment of such amounts to the
Participant until such time that the payments would be
deductible by the Company. Provided, however, that no payment
postponed pursuant to this Section 4.7 shall be postponed
beyond the first anniversary of such Participant's Termination
of Service.
4.8 Change of Control and Lump Sum Payments.
(a) If there is a Change of Control, notwithstanding any
other provision of this Plan, any Participant who has
a Deferred Benefit Account hereunder may, at any
time during a twenty-four (24) month period
immediately following a Change of Control, elect to
receive an immediate lump sum payment of the balance
of his or her Deferred Benefit Account, reduced by a
penalty equal to ten percent (10%) of the
Participant's Deferred Benefit Account as of the
Determination Date. The ten percent (10%) penalty
shall be permanently forfeited and shall
not be paid to, or in respect of, the Participant.
(b) If there is a Change of Control, notwithstanding any
other provision of this Plan, any retired or disabled
Participant, or Beneficiary, who has a Deferred
Benefit Account hereunder may, at any time during a
twenty-four (24) month period immediately following a
Change of Control, elect to receive an immediate lump
sum payment of the balance of his or her Deferred
Benefit Account, reduced by a penalty equal to five
percent (5%) of the Participant's Deferred Benefit
Account as of the Determination Date. The
five percent (5%) penalty of the retired or disabled
Participant's or Beneficiary's Deferred Benefit
Account shall be permanently forfeited and shall not
be paid to, or in respect of, the retired or disabled
Participant or Beneficiary.
(c) In the event no such request is made by a
Participant, a retired or disabled Participant or
Beneficiary, the Plan and Agreement shall remain in
full force and effect.
4.9 Change In Credit Rating and Lump Sum Payments.
In the event the Company's financial rating falls below
Investment Grade, a Participant, retired or disabled
Participant, or Beneficiary may at any time during a six (6)
month period following the reduction in the Company's
financial rating, elect to receive an immediate lump sum
payment of the balance of his or her Deferred Benefit Account
reduced by a penalty equal to ten percent (10%) of the
Participant's Deferred Benefit Account or five percent (5%) of
the retired or disabled Participant's or Beneficiary's
Deferred Benefit Account. The penalties accrued hereunder
shall be permanently forfeited and shall not be paid to, or in
respect of, the Participant, retired or disabled Participant
or Beneficiary.
In the event no such request is made by a Participant, retired
or disabled Participant or Beneficiary, the Plan and Agreement
shall remain in full force and effect.
4.10 Tax Withholding. To the extent required by law in effect at
the time payments are made, the Company shall withhold any
taxes required to be withheld by any Federal, State or local
government.
4.11 Commencement of Payments. Unless otherwise provided,
commencement of payments under this Plan shall be as soon as
administratively feasible on or after the Determination Date
after receipt of notice by the Committee of an event which
entitles a Participant or a Beneficiary to payments under this
Plan.
4.12 Recipients of Payments: Designation of Beneficiary. All
payments to be made by the Company under the Plan shall be
made to the Participant during his or her lifetime, provided
that if the Participant dies prior to the completion of such
payments, then all subsequent payments under the Plan shall be
made by the Company to the Beneficiary determined in
accordance with this Section. The Participant may designate a
Beneficiary by filing a written notice of such designation
with the Committee in such form as the Committee requires and
may include contingent Beneficiaries. The Participant may from
time-to-time change the designated Beneficiary by filing a new
designation in writing with the Committee. If no designation
is in effect at the time when any benefits payable under this
Plan shall become due, the Beneficiary shall be the spouse of
the Participant, or if no spouse is then living, the
representatives of the Participant's estate.
V. CLAIMS FOR BENEFITS PROCEDURE
5.1 Claim for Benefits. Any claim for benefits under the Plan
shall be made in writing to any member of the Committee. If
such claim is wholly or partially denied by the Committee, the
Committee shall, within a reasonable period of time, but not
later than sixty (60) days after receipt of the claim, notify
the claimant of the denial of the claim. Such notice of denial
shall be in writing and shall contain:
(a) The specific reason or reasons for denial of the
claim;
(b) A reference to the relevant Plan provisions upon
which the denial is based;
(c) A description of any additional material or
information necessary for the claimant to perfect the
claim, together with an explanation of why such
material or information is necessary; and
(d) An explanation of the Plan's claim review procedure.
If no such notice is provided, the claim shall be deemed to
have been denied.
5.2 Request for Review of a Denial of a Claim for Benefits. Upon
the receipt by the claimant of written notice of denial of the
claim, the claimant may file a written request to the
Committee, requesting a review of the denial of the claim,
which review shall include a hearing if deemed necessary by
the Committee. In connection with the claimant's appeal of the
denial of his or her claim, he or she may review relevant
documents and may submit issues and comments in writing.
5.3 Decision Upon Review of Denial of Claim for Benefits. The
Committee shall render a decision on the claim review
promptly, but no more than sixty (60) days after the receipt
of the claimant's request for review, unless special
circumstances (such as the need to hold a hearing) require an
extension of time, in which case the sixty (60) day period
shall be extended to 120 days. Such decision shall:
(a) Include specific reasons for the decision;
(b) Be written in a manner calculated to be understood by
the claimant; and
(c) Contain specific references to the relevant Plan
provisions upon which the decision is based.
The decision of the Committee shall be final and binding in
all respects on both the Company and the claimant.
VI. ADMINISTRATION
6.1 Committee. The Plan shall be administered by the Committee.
The Committee shall elect one of its members as chairman.
Members of the Committee shall not receive compensation for
their services. Committee expenses shall be paid by the
Company. Members of the Committee or agents of the Committee
may be Participants under the Plan. No member of the Committee
who is also a Participant shall be involved in the decisions
of the Committee regarding any determination of any claim for
benefit with respect to himself or herself.
6.2 General Rights, Powers, and Duties of Committee. The Committee
shall be responsible for the management, operation, and
administration of the Plan. The Committee may designate a
Committee member or an officer of the Company as Plan
Administrator. Absent such delegation, the Committee shall be
the Plan Administrator. The Plan Administrator shall perform
duties as designated by the Committee. In addition to any
powers, rights and duties set forth elsewhere in the Plan, it
shall have the following powers and duties:
(a) To adopt such rules and regulations consistent with
the provisions of the Plan as it deems necessary for
the proper and efficient administration of the Plan;
(b) To administer the Plan in accordance with its terms
and any rules and regulations it establishes;
(c) To maintain records concerning the Plan sufficient to
prepare reports, returns and other information
required by the Plan or by law;
(d) To construe and interpret the Plan including any
doubtful or contested terms and resolve all questions
arising under the Plan;
(e) To direct the Company to pay benefits under the Plan,
and to give such other directions and instructions as
may be necessary for the proper administration of the
Plan;
(f) To employ or retain agents, attorneys, actuaries,
accountants or other persons, who may also be
Participants in the Plan or be employed by or
represent the Company, as it deems necessary for the
effective exercise of its duties, and may delegate to
such agents any power and duties, both ministerial
and discretionary, as it may deem necessary and
appropriate; and
(g) To be responsible for the preparation, filing and
disclosure on behalf of the Plan of such documents
and reports as are required by any applicable Federal
or State law.
6.3 Information to be Furnished to Committee. The Company shall
furnish the Committee such data and information as it may
require. The records of the Company shall be determinative of
each Participant's period of employment, termination of
employment and the reason therefor, leave of absence,
reemployment, Years of Service, personal data, and Salary and
Bonus reductions.
Participants and their Beneficiaries shall furnish to the
Committee such evidence, data, or information, and execute
such documents as the Committee requests.
6.4 Responsibility. No member of the Committee, the Compensation
Committee or the Board of Directors of the Company shall be
liable to any person for any action taken or omitted in
connection with the administration of this Plan.
6.5 Committee Review. Any action on matters within the discretion
of the Committee shall be final and conclusive as to all
Participants, retired Participants, disabled Participants,
Beneficiaries and other persons claiming rights under the
Plan. The Committee shall exercise all of the powers, duties
and responsibilities set forth hereunder in its sole
discretion.
VII. AMENDMENT AND TERMINATION
7.1 Amendment. The Plan may be amended in whole or in part by
either the Board of Directors or the Compensation Committee at
any time. Notice of any such amendment shall be given in
writing to the Committee and to each Participant and each
Beneficiary. No amendment shall decrease the value of a
Participant's Deferred Benefit Account.
7.2 Company's Right to Terminate. The Board of Directors may
terminate the Plan and may terminate any Agreements pertaining
to the Participant at any time after the Effective Date of the
Plan. In the event of any such termination, the Participant
shall be entitled to the amount of his or her Deferred Benefit
Account determined under Section 3.7 as of the date of any
such termination. Such benefit shall be paid to the
Participant in quarterly installments over a period of no more
than ten (10) years, except that the Company, in its sole
discretion, may pay out such benefit in a lump sum or in
installments over a period shorter than ten (10) years.
VII. MISCELLANEOUS
8.1 No Implied Rights; Rights on Termination of Service. Neither
the establishment of the Plan nor any amendment thereof shall
be construed as giving any Participant, retired Participant,
disabled Participant, Beneficiary, or any other person any
legal or equitable right unless such right shall be
specifically provided for in the Plan or conferred by specific
action of the Company in accordance with the terms and
provisions of the Plan. Except as expressly provided in this
Plan, the Company shall not be required or be liable to make
any payment under the Plan.
8.2 No Right to Company Assets. Neither the Participant nor any
other person shall acquire by reason of the Plan any right in
or title to any assets, funds or property of the Company
whatsoever including, without limiting the generality of the
foregoing, any specific funds, assets, or other property which
the Company, in its sole discretion, may set aside. Any
benefits which become payable hereunder shall be paid from the
general assets of the Company. The Participant shall have only
a contractual right to the amounts, if any, payable hereunder
unsecured by any asset of the Company. Nothing contained in
the Plan constitutes a guarantee by the Company that the
assets of the Company shall be sufficient to pay any benefit
to any person.
8.3 No Employment Rights. Nothing herein shall constitute a
contract of employment or of continuing service or in any
manner obligate the Company to continue the services of the
Participant, or obligate the Participant to continue in the
service of the Company, or as a limitation of the right of the
Company to discharge any of its employees, with or without
cause. Nothing herein shall be construed as fixing or
regulating the Salary and Bonus payable to the Participant.
8.4 Offset. If, at the time payments or installments of payments
are to be made hereunder, the Participant, retired
Participant, disabled Participant, or the Beneficiary are
indebted or obligated to the Company, then the payments
remaining to be made to the Participant, retired Participant,
disabled Participant, or the Beneficiary may, at the sole
discretion of the Company, be reduced by the amount of such
indebtedness or obligation, provided, however, that an
election by the Company not to reduce any such payment or
payments shall not constitute a waiver of its claim for such
indebtedness or obligation.
8.5 Non-assignability. Neither the Participant nor any other
person shall have any voluntary or involuntary right to
commute, sell, assign, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate or convey in advance
of actual receipt the amounts, if any, payable hereunder, or
any part thereof, which are expressly declared to be
unassignable and non-transferable. No part of the amounts
payable shall be, prior to actual payment, subject to seizure
or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by the Participant or any
other person, or be transferable by operation of law in the
event of the Participant's or any other person's bankruptcy or
insolvency.
8.6 Successors, Mergers, and Consolidations. The Plan and any
Agreement thereunder shall inure to the benefit of and be
binding upon (i) the Company and its successors and assigns,
including without limitation, any corporation into which the
Company may be merged or consolidated, or which acquires all
or substantially all of the assets and business of the Company
and (ii) the Participant and his or her heirs, executors,
administrators and legal representatives.
8.7 Notice. Any notice required or permitted to be given under the
Plan shall be sufficient if in writing and hand delivered, or
sent by registered or certified mail, and if given to the
Company, delivered to the principal office of the Company,
directed to the attention of the Committee. Such notice shall
be deemed given as of the date of delivery or, if delivery is
made by mail, as of the date shown on the postmark or the
receipt for registration or certification.
8.8 Governing Laws. The Plan shall be construed and administered
according to the laws of the State of Wisconsin.